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Recent Changes in California Related to Family Law

New bills (effective January 1, 2011, unless otherwise indicated) made important changes to existing family law statutes:

AB 1050 (Ch 187, Ma) Child’s preference as to custody and visitation

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California Family Code Section 3042 currently requires Trial Courts to consider and give due weight to a child’s preference regarding custody if the child is of sufficient age and capacity to form an intelligent opinion on the issue. Effective January 1, 2012, AB 1050 amends this statute to add that Trial Courts must also consider such a child’s wishes regarding visitation. This amendment further adds that a child who is at least 14 years old must be allowed to address Trial Court regarding custody and visitation, unless the judge finds that it would not be in the child’s best interests (reasons must be stated on the record). This Section specifically does not prevent younger children from addressing Trial Court on these issues if appropriate and consistent with the child’s best interests.

Currently, California Family Code Section 3042 permits Trial Courts to provide alternate method for learning about the child’s preferences if it precludes calling him or her as witness. As amended, Section 3042(e) now requires the provision of such an alternative. Amended §3042(f) adds that child’s counsel, evaluator, investigator, or mediator (who is submitting custody or visitation recommendation) must tell the judge if the child wants to address the Trial Court, while parents or their attorneys may give the judge that information; if no one has made such a request, Trial Court may inquire on its own if the child wants to provide input on custody or visitation. Amended Section 3042(g) specifies that the statute does not require any child to express his or her wishes on these issues. Further, Judicial Council must establish procedures for examining child witnesses and guidelines for alternate means of obtaining their input on custody or visitation; the new rule of court must be issued by January 1, 2012, when the rest of the changes in the State will become operative.

AB 2674 (Ch 65, Block) Remedies for soliciting murder of spouse

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California Family Code Section 782.5 currently provides that if someone is convicted of attempting to murder his or her spouse, the intended victim is entitled to 100% of the community property interest in his or her retirement and pension benefits. AB 2574 amends this statute to extend its application to cases where the perpetrator was convicted of soliciting the murder of his or her spouse.

AB 2674 also amends California Family Code Section 4324, which currently prohibits any award or temporary or permanent spousal support, or of any medical, life, or other insurance benefit payments, to someone who has been convicted of attempting to murder his or her spouse. As amended, Section 4324 will apply to cases where the perpetrator was convicted of soliciting the murder of his or her spouse.

This bill amends California Code of Civil Procedure Section 170.6 [peremptory challenge to a judge] to add a requirement that in civil cases only, a party who moves to disqualify a judge under that statute must serve notice on all of the other parties within five (5) days after making the motion. Under current Code of Civil Procedure Section 170.6(a)(2), a party who directs a peremptory challenge to a judge assigned for all purposes must make the motion within 10 days after notice of the assignment or after the party’s first appearance. At the same time, however, existing California Government Code Section 68616(I) imposes a special rule for cases subject to fast-track rules: in direct calendar courts, peremptory challenges must be made within 15 days after the party’s first appearance, while the 10-day deadline applies to master calendar courts. AB 1894 establishes a uniform deadline for challenging an all-purpose assignment in all civil cases by extending the deadline for Code of Civil Procedure Section 170.6(a)(2) from 10 days to 15 days, and by deleting the exception in California Government Code Section 68616(I).

AB 2339 (Ch 95, Smyth) Reports of emotional child abuse

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This bill amends California Penal Code Section 11167(b), which currently allows the sharing of information with investigators regarding suspected child abuse or neglect, to extend this authorization to information regarding a report under California Penal Code Section 11166.05 [mandated child abuse reporters may report suspicion that child is at risk of serious emotional damage]. According to the Legislative Analysis, this clarifying amendment will protect reporters of emotional abuse from threats of liability or discipline if they cooperate with investigators.